At all times relevant to the instant action, plaintiff George Arce was an inmate at the Sing Sing Correctional Facility ("Sing Sing"). Complaint ("Compl.") at 1 (unpaginated).
*fn2"
Defendant Jean Banks is a nurse employed in the medical clinic at the Fishkill Correctional Facility ("Fishkill"). Id.

In considering a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must construe all allegations in a complaint as true and every inference derived therefrom in favor of the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969). A complaint should not be dismissed for failure to state a claim unless it appears that plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Id. at 422 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

Arce's claims must be dismissed because he fails to state a cognizable constitutional claim. Arce sets forth no facts which, if true, create a rational inference that he has suffered any infringement of his right to free speech. Arce's allegation that Banks "yelled" at him does not rise to the constitutional level since yelling, cursing, or even race-baiting does not violate any constitutionally protected rights. See Morgan v. Ward, 699 F. Supp. 1025, 1055 (N.D.N.Y. 1988) (racial insults do not violate the constitution); Keyes v. City of Albany, 594 F. Supp. 1147, 1155 (1984) (use of vile and abusive language cannot form basis for § 1983 claim); Franciotti v. Reynolds, 550 F. Supp. 146, 147 (S.D.N.Y. 1982) (warnings and verbal reprimands alone are not actionable under § 1983); Martin v. Blackburn, 581 F.2d 94, 94 (5th Cir. 1978) (per curiam) (verbal harassment and profanity not cognizable as constitutional claim). At most, Arce has suffered a de minimis infringement of his First Amendment rights which is not actionable in a § 1983 petition. See Connecticut State Federation of Teachers v. Board of Education, 538 F.2d 471, 481 (2d Cir. 1976); United States v. Shiel, 611 F.2d 526, 528 n.3 (1st Cir. 1979).

Indeed, because the complaint and attached surgeon's notes establish that Arce discussed the method of surgery and refused to undergo the surgery in the manner directed by the surgeon, there are no facts alleged which afford a rational basis to conclude that the defendant's conduct inflicted any pain on plaintiff, much less the wanton infliction of pain which the law requires. This is especially true since Arce does not claim that he was placed in the Special Housing Unit as threatened or otherwise adversely affected. Nor does Arce allege that he was unable to have the cyst removed either at the Fishkill medical clinic or elsewhere in the prison system.

In any event, even if the alleged facts rose to the level of a constitutional violation, see Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991) (threshold inquiry of qualified immunity is whether plaintiff asserted violation of constitutional right at all), qualified immunity protects Banks from liability for damages in her individual capacity. Public officials are entitled to immunity from damage actions insofar as a reasonable person in defendant's position would believe that his "conduct [did] not violate clearly established . . . constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). As set forth above, in yelling at Arce or even threatening to punish him for directing the method of surgery, Banks did not violate any clearly established constitutional right of which a reasonable nurse should have known. See Rodriguez v. Phillips, 66 F.3d 470 (2d Cir. 1995) (holding First Amendment right of prisoner to approach and speak to prison officer while officer was disciplining another inmate was not clearly established).

CONCLUSION

For the reasons set forth above, defendant's motion to dismiss shall be and hereby is granted. Accordingly, the Clerk of Court is directed to close the above-captioned action.

It is SO ORDERED.

DATED: New York, New York

February 6, 1996

John E. Sprizzo

United States District Judge

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